The
California Milk Producers Advisory Board is a public entity and cannot be sued
under the Unfair Competition Law, the First District Court of Appeal ruled
yesterday.

Div.
Two affirmed a San Francisco Superior Court judge’s dismissal of a suit by
People for the Ethical Treatment of Animals, seeking an injunction to end the
milk board’s advertising campaign with the slogan “Great cheese comes from
happy cows. Happy cows come from California.”

PETA
calls that false advertising. In fact, the group claims, California
cows aren’t happy because they live under unsanitary conditions and are abused
in order to maximize milk production.

“They
routinely spend their lives in ‘dry’ [and often muddy] lots of grassless dirt,”
the complaint alleged. “...They are repeatedly impregnated and then milked
throughout their pregnancies. Their calves are taken away shortly after birth,
many of whom are then condemned to veal crates. They commonly suffer from
painful maladies from their intensive rearing. And when their worn bodies can
no longer meet the inordinately high production demands of the industry, they
are slaughtered.”

Not
‘Persons’

Judge
David Garcia sustained the milk board’s demurrers, saying the statute by its
terms applies only to “persons” and not to public entities.

The
milk board is one of several marketing order advisory boards created by the
California Department of Food and Agriculture, pursuant to statutory
authorization, to promote specific products. Other boards promote alfalfa
seeds, plums, apples, grapes, asparagus, kiwifruit, wheat, rice, tomatoes,
eggs, walnuts, seafood and other commodities.

The
board argued in its demurrers that it is not a person for purposes of the false
advertising and unfair competition laws, and that it lacks the legal capacity
to be sued. Garcia agreed with the first contention, as did the appellate
panel.

Justice
Ignacio Ruvolo cited several cases holding that the California State Lottery
and the University
of California
are not persons for purposes of the UCL.

“In
all of these cases, the courts noted that the definition of the term ‘person’
in the operative statutes did not include public entities, and concluded that
the UCL did not otherwise evidence any intent to impose governmental
liability,” the justice wrote. “We agree.”

Since
other statutes, such as the Unfair Practices Act, specifically define “person”
to include public entities, the justice said, the lack of inclusion of such
entities in the UCL definition cannot be treated as an oversight.

Cases
Distinguished

The
justice acknowledged that the courts have in some cases treated public entities
as persons within the meaning of various statutes that did not specifically
define them as such. According to those cases, Ruvolo explained, a public
entity will be treated the same as a private citizen if its sovereign power is
not thereby infringed upon.

But
this “infringement” test cannot be applied in contravention of the plain
language of a statute, the justice insisted. And even if it were applied in
this case, he said, PETA’s action would fail.

Ruvolo
cited the California Marketing Act of 1937, which declares a public interest in
the marketing of California
commodities for the purpose of increasing demand and authorizes the creation of
marketing boards like the milk board for that purpose.

The
court, the justice said, has “no hesitancy in concluding there would indeed be
‘an infringement of sovereign power’ for the [milk board] to be subject to suit
under the UCL for the content of one of its promotional campaigns.”

The
case is People for the Ethical Treatment of
Animals, Inc. v. California Milk Producers Advisory Board, 05 S.O.S.
139.